Are frozen embryos children or property in matrimonial law? It’s a fascinating area for hypothetical bioethics discussions.

And now there’s a real live Canadian legal case that will surely have precedent-setting implications.

A Vancouver Island woman has won an interim injunction to keep four embryos frozen until the end of her divorce trial. Her ex-husband does not want her to use the embryos that were created with biological material that is half his. She wants to get pregnant again even though she’s going through a divorce.

BC has a long history with in vitro fertilization medicine; indeed, Canada’s first “test-tube” baby was born here, on Christmas Day in 1983. But the public embryo bank that was involved in that first case is now getting out of the business of IVF medicine and cryo-storage.

Hence, the tantalizing case which is already stirring lots of debate.

I co-wrote the story about this pretty sensational bioethics legal case. It follows here, and below that, I’ve republished Dr. Timothy Rowe’s excellent article from the BC Medical Journal, in which he describes the history of fertility treatment in BC and laments the end of an era in public IVF medicine.

The front page story about the frozen embryos

By Pamela Fayerman and Chris Reynolds

A Vancouver Island woman in a “custody” battle over four frozen embryos was successful at a B.C. Supreme Court hearing Wednesday in her bid to have them preserved for at least six more months.

Justice Nathan Smith ordered the embryos that were created by Juanita and Gregory Nott nearly nine years ago be preserved – until their ultimate fate emerges during the former couple’s divorce trial next June.

It is believed to be the first case of its kind in Canada.

The embryos are being stored at the B.C. Women’s Centre for Reproductive Health, an in vitro fertilization (IVF) facility at B.C. Women’s Hospital that has closed recently. The hospital is now trying to get hundreds of stored embryos and sperm specimens transferred to private fertility clinics.

But sending the embryos to another clinic requires mutual consent and Gregory Nott wants the embryos destroyed, so he refused to sign the transfer consent form. The couple agreed to freeze the embryos in 2004, after Juanita struggled to get pregnant.

They separated in 2011.

The 43-year old Nanoose Bay woman has four children with Gregory – two of them conceived from implanted embryos. She wants at least one more child. She sought the court order to transfer the embryos, created with her former husband’s sperm, to the Genesis Fertility Centre in Vancouver, or another comparable fertility clinic.

Juanita’s lawyer, Lorne MacLean, said the decision validated his client’s claim that the embryos should remain intact and viable, pending the divorce trial. The embryos are in a special category, as neither property nor persons, he maintains.

8-cell human embryo, day 3 (Photo credit: Wikipedia)

“They are an unborn life form at this stage, potential persons in waiting. And they are more than a couch, they are more than a house; they are a special hybrid between property and a person,” he said in an interview.

B.C. Women’s Hospital lawyer Penny Washington said the hospital’s timeline for moving the embryos – Nov. 30 – has passed. So they should be moved “as soon as possible. ” The Nott embryos are four of hundreds that the hospital has in storage but wants transferred out to private facilities now that it is no longer accepting new patients into its non-profit IVF program.

The University of B.C.-affiliated IVF clinic bounced around various hospitals since it first opened in 1982. The clinic helped create Canada’s first “test tube baby” – Robbie Reid – who was born at Grace Hospital on Christmas Day, 1983.

Although the non-profit IVF clinic has always been housed in public hospitals, including Vancouver General (and B.C. Women’s since 2006), the costs of IVF have been the responsibility of patients, who paid thousands of dollars for each IVF cycle.

Dr. Alain Gagnon, a perinatologist and senior medical director for ambulatory programs at Women’s, said in an interview that patients were sent letters in the summer about the pending closure and need to move the frozen “material” – embryos and sperm.

“Multiple (private) clinics have opened in Greater Vancouver and it was becoming harder for us to maintain state-of-the-art services and a cutting-edge facility. So we felt it would be better to leave that work to other clinics since they have proven themselves as offering excellent services.

“And we can focus our energy on other parts of reproductive health care that are not as well served, like pelvic pain and endometriosis.”

Gagnon said clinic clients may undergo multiple IVF cycles per year, in which frozen embryos are thawed and then transplanted from the petri dish into the womb at three or five days after fertilization.

In B.C., there are about 1,800 IVF cycles (procedures) per year. As one of several infertility clinics in B.C., Women’s “hosted” a small proportion of those – about 200 cycles per year. “We were striving to be the best we could but we felt we couldn’t maintain that, so it was better to close before the service quality declined,” he said, adding that IVF services are so specialized, they are best left to facilities that can constantly reinvest capital and profits into ever-changing practices, facility upgrades and technology.

Cheryl Davies, vice-president of ambulatory services at B.C. Women’s, said the letter sent to patients like Nott would have explained the closing and the timeline for transferring embryos or sperm specimens by courier to another facility, along with an explanation of options for other clinic services available in B.C.

But hundreds of patients have not yet provided instructions on what they want done with their samples.

“We need instructions from everyone, and we haven’t heard from everyone. There are a great number of specimens in storage. The vast majority (75 per cent) are sperm specimens.”

Davies said while the initial goal was to have specimens moved by the end of last month, it’s been a challenge making contact with patients who moved and didn’t update their contact information.

The hospital hasn’t destroyed any specimens and doesn’t plan to dispose of any, especially in cases where there’s no clear authority from the owners of the material. The matter is complicated by the fact there are no federal or provincial legally binding directives in such circumstances.

“So lots of this is new territory,” she said.

Individuals who know they have embryos or sperm in storage at the B.C. Women’s Centre for Reproductive Health can call 604-875-2445, or toll-free 1-888-300-3088, to give instructions and get more information.

In an essay in the B.C. Medical Journal last summer, Dr. Timothy Rowe lamented the closing of the B.C. Women’s facility.

He wrote: “I don’t wish to revisit this decision: it is what it is. However, I can lament the loss of a B.C. institution, one which over almost 30 years generated previously unimagined happiness for thousands of families in British Columbia.

“I can lament the fact that Canada has lost a trail-blazing program. I can lament the fact that there is no longer an institution-based, not-for-profit IVF program option for the province. But I can also take comfort in knowing that UBC IVF was a wonderful program that was conceived in exciting times, yielded substantial scientific output, and provided generous service to the people of British Columbia for a long time. I will miss it.”

“In 1982 a group of clinicians and scientists in the UBC Department of Obstetrics and Gynaecology began offering in vitro fertilization services at UBC Hospital. IVF was in its infancy in North America, and no “made in Canada” IVF pregnancy had been achieved. After some months of unsuccessful attempts, the program shifted to Shaughnessy Hospital where, in the summer of 1983, success was finally achieved. Robby Reid, Canada’s first “test-tube baby,” was born at Vancouver’s Grace Maternity Hospital on 25 December 1983—premature, but healthy.

Having an IVF program in British Columbia was a blessing for many women and their partners, but public opinion remained mixed. The first few pregnancies were slow to arrive, and the IVF process was labor intensive, requiring (as it did then) a laparoscopy under general anesthesia to retrieve eggs from the ovaries. The waiting list ballooned to 2 years. Fortunately, after some years the need for laparoscopy and general anesthesia disappeared, as transvaginal egg retrieval under conscious sedation became the norm.

The costs of treatment for the first few years were, to a large extent, offset by coverage from the Ministry of Health, but in 1988 the Vander Zalm provincial government de-insured IVF treatment. Thereafter, the costs of IVF treatment in British Columbia became the direct responsibility of patients. Requests to restore insurance coverage for IVF treatment were rejected on the grounds that such treatment was “experimental.” Many couples went into debt to pay for their single attempt at IVF, and only a minority returned for a second attempt.

In 1992 the provincial government announced plans to close Shaughnes­sy Hospital, and a new home for the IVF program was found in Vancouver General Hospital’s Willow Pavilion. Gradually, new techniques such as in­tracytoplasmic sperm injection, egg donation, and blastocyst culture be­came incorporated in treatment options, and as the new millennium dawned global IVF pregnancy rates took an upward leap, just in time to meet the demographic shift in the age of wo­men attempting pregnancy for the first time.

The first 20 years of the IVF program were celebrated at a remarkable gathering at the Vancouver Aquarium in 2003. At that celebration, it was acknowledged that the costs of IVF treatment remained beyond the reach of many in British Columbia, and the Hope Fertility Fund was established to provide grants for IVF treatment to those who needed it. The first donation to the fund came from Robby Reid’s mother.

Additional IVF programs in the pro­vince gave women and couples more options for IVF treatment, but a core population seemed most comfortable with a program that was based in an institution. However, in 2006 VGH revised its patient footprint, and the UBC IVF Program faced eviction once more. Further negotiations heralded a return to the Shaughnessy Hos­pital site, by now transformed into BC Women’s Hospital and Health Centre. The program’s members then had their first experience of working in an area designed specifically for reproductive technology.

A happy couple of years later, UBC’s Faculty of Medicine elected to divest itself of all clinical programs, and the IVF Program (being a not-for-profit entity) had to find a new sponsor. The administration of BC Wo­men’s agreed to take over the program, and did so in late 2010. But the new era did not last. The old building in which the IVF Program was housed was creaking, and renovations in the vicinity of the program began in March 2012, necessitating temporary closure of assisted reproduction activities for fear of contamination. Further audit by the hospital of the aging equipment in the program’s gamete laboratory showed the need for multiple upgrades, the costs of which were considerably beyond the hospital’s budget.

And so the administration elected to close the IVF program.

I don’t wish to revisit this decision: it is what it is. However, I can lament the loss of a BC institution, one which over almost 30 years generated previously unimagined happiness for thousands of families in British Columbia. I can lament the fact that Canada has lost a trailblazing program. I can lament the fact that there is no longer an institution-based, not-for-profit IVF program option for the province. But I can also take comfort in knowing that UBC IVF was a wonderful program that was conceived in exciting times, yielded substantial scientific output, and provided generous service to the people of British Columbia for a long time. I will miss it.”

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